Electronically Filed 6/3/2021 10:19 AM Steven D. Grierson CLERK OF THE COURT 1 APET RENE L. VALLADARES 2 Federal Public Defender Nevada Bar No. 11479 3 DAVID ANTHONY Assistant Federal Public Defender 4 Nevada Bar No. 7978 [email protected] 5 BRAD D. LEVENSON Assistant Federal Public Defender 6 Nevada Bar No. 13804C [email protected] 7 JOCELYN S. MURPHY Assistant Federal Public Defender 8 Nevada Bar No. 15292 [email protected] 9 411 E. Bonneville, Ste. 250 Las Vegas, Nevada 89101 10 (702) 388-6577 (702) 388-5819 (Fax) 11 Attorneys for Zane Michael Floyd 12
13 DISTRICT COURT CLARK COUNTY, NEVADA 14 ZANE MICHAEL FLOYD, Case No. A-21-832952-W 15 Dept. No. 17
Petitioner, 16 SECOND AMENDED PETITION FOR v. WRIT OF HABEAS CORPUS (POST- 17 CONVICTION)
18 WILLIAM GITTERE, Warden, Ely State Date of Hearing: Prison; AARON FORD; Attorney General, Time of Hearing:
19 State of Nevada (DEATH PENALTY CASE) 20 Respondents. EXECUTION SOUGHT BY THE
21 STATE FOR THE WEEK OF JULY 26, 2021
22
23
Case Number: A-21-832952-W
1 Petitioner, Zane Michael Floyd, hereby files this Second Amended Petition for
2 Writ of Habeas Corpus pursuant to Nevada Revised Statutes sections 34.724 and
3 34.820. Floyd alleges that he is being held in custody in violation of the Fifth, Sixth,
4 Eighth, and Fourteenth Amendments of the Constitution of the United States of
5 America; Article 1, sections Three, Six, Eight, and Nine and Article Four, section
6 Twenty-one of the Constitution of the State of Nevada; and the rights afforded him
7 under international law enforced under the Supremacy Clause of the United States
8 Constitution, U.S. Const. art VI, cl.2.
9 DATED this 3rd day of June, 2021. Respectfully submitted 10 RENE L. VALLADARES Federal Public Defender 11
12 /s/ David Anthony DAVID ANTHONY 13 Assistant Federal Public Defender
14 /s/ Brad D. Levenson BRAD D. LEVENSON 15 Assistant Federal Public Defender 16
/s/ Jocelyn S. Murphy 17 JOCELYN S. MURPHY Assistant Federal Public Defender 18
19
20
21
22
23
2
1 PROCEDURAL HISTORY
2 Name of institution and county in which you are presently imprisoned or
3 where and how you are presently restrained of your liberty: Ely State Prison,
4 located in White Pine County.
5 Name and location of court which entered the judgment of conviction under
6 attack: Eighth Judicial District Court, 200 Lewis Avenue, Las Vegas, NV 89101.
7 Date of judgment of conviction: September 5, 2000
8 Case Number: C159897
9 (a) Length of Sentence:
10 Count I: 72 – 180 months
11 Counts II, III, IV, and V: death by lethal injection Count VI: 96 – 240 months plus equal and consecutive enhancement 12 Count VII: Life with parole eligibility after 60 months 13 Counts VIII, IX, X, and XI: Life with parole eligibility after 120 months 14 to run consecutively with an additional life sentence of 120 months
15 Counts VI and VII are served consecutive to Count VIII; Count IV
16 served consecutive to Count VIII; Count X served consecutive to Count IX; and Count XI served consecutive to count X. 17 (b) If sentence is death, state any date upon which execution is scheduled: 18 The week of July 26, 2021. 19 Are you presently serving a sentence for a conviction other than the 20 conviction under attack in this motion? Yes [ ] No [ × ] 21 If “yes”, list crime, case number and sentence being served at this time: 22 Nature of offense involved in conviction being challenged: N/A 23
3
1 Nature of offense involved in conviction being challenged:
2 Zane Floyd was charged by information with, on or about June 3, 1999:
3 (1) burglarizing Albertsons while in possession of a firearm; (2) four
4 counts of murder with use of a deadly weapon for shooting Thomas
5 Michael Darnell, Dennis Troy Sergeant, Carlos Chuck Leos, and
6 Lucille Alice Tarantino, who died as a result of their injuries; (3)
7 attempted murder with use of a deadly weapon for shooting Zachary
8 Emenegger; (4) first degree kidnapping of Tracie Rose Carter with use
9 of a deadly weapon; and (5) four counts of sexual assault upon Tracie
10 Rose Carter with use of a deadly weapon.
11 What was your plea?
12 (a) Not guilty × (c) Guilty but mentally ill
13 (b) Guilty (d) Nolo contendere
14 If you entered a plea of guilty or guilty but mentally ill to one count of an
15 indictment or information, and a plea of not guilty to another count of an indictment
16 or information, or if a plea of guilty or guilty but mentally ill was negotiated, give
17 details: N/A
18 If you were found guilty after a plea of not guilty, was the finding made by:
19 (a) Jury × (b) Judge without a jury
20 Did you testify at the trial? Yes No ×
21 Did you appeal from the judgment of conviction? Yes × No
22 If you did appeal, answer the following:
23
4
1 (a) Name of Court: Nevada Supreme Court
2 (b) Case number or citation: Floyd v. State, 118 Nev. 156, 42 P.3d
3 249 (2002)
4 (c) Result: Conviction and sentence affirmed.
5 If you did not appeal, explain briefly why you did not: N/A
6 Other than a direct appeal from the judgment of conviction and sentence,
7 have you previously filed any petitions, applications or motions with respect to this
8 judgment in any court, state or federal? Yes × No
9 If your answer to No. 15 was “yes,” give the following information:
10 (a) (1) Name of Court: Eighth Judicial District Court
11 (2) Nature of proceeding: State post-conviction Petition for Writ
12 of Habeas Corpus
13 (3) Ground raised:
14 I. The trial court committed constitutional error in
15 denying Defendant’s motion to sever counts for trial.
16 II. The trial court committed constitutional error in
17 denying Defendant’s motion for a change of venue.
18 III. The trial court committed constitutional error in
19 denying Defendant’s motion to dismiss statutory
20 aggravators based on a failure to find probable cause
21 for existence of aggravating circumstances.
22
23
5
1 IV. The trial court committed constitutional error by
2 improperly requiring Defendant to disclose expert
3 witness test results and allowing the State to make
4 use of that data in presenting penalty phase rebuttal
5 evidence.
6 V. The trial court committed constitutional error in
7 denying Defendant’s motion to suppress Defendant’s
8 statements.
9 VI. Prosecutorial misconduct during closing argument
10 requires that a new trial be conducted.
11 VII. Prosecutorial misconduct during the presentation of
12 victim-impact testimony at the penalty hearing
13 requires that a new penalty hearing be conducted.
14 VIII. Floyd’s conviction and death sentence are invalid
15 under the State and Federal guarantee of effective
16 assistance of counsel, due process of law, equal
17 protection of the law, cross-examination and
18 confrontation and a reliable sentence due to the failure
19 of trial counsel to provide reasonably effective
20 assistance of counsel.
21 IX. Trial counsel failed to make contemporaneous
22 objections on valid issues during trial and appellate
23
6
1 counsel failed to raise these issues on direct appeal,
2 both failures being in violation of Floyd’s rights under
3 the Sixth Amendment to effective counsel and under
4 the Fifth and Fourteenth Amendments to due process
5 and a fundamentally fair trial.
6 X. Trial counsel failed to request an instruction during
7 the penalty phase that correctly defined the use of
8 character evidence for the jury.
9 XI. Trial counsel failed to object and move to strike
10 overlapping aggravating circumstances and appellate
11 counsel failed to raise the issue on direct appeal.
12 XII. The malice instruction given to the jury contained an
13 unconstitutional presumption that relieved the State
14 of its burden of proof and violated Floyd’s presumption
15 of innocence.
16 XIII. Floyd’s conviction and sentence are invalid under the
17 State and Federal Constitutional guarantee of due
18 process, equal protection of the laws, and reliable
19 sentence due to the failure of the Nevada Supreme
20 Court to conduct fair and adequate appellate review.
21 XIV. Floyd’s conviction and sentence is invalid under the
22 State and Federal Constitutional guarantees of due
23
7
1 process, equal protection, impartial jury from cross-
2 section of the community and reliable determination
3 due to the trial, conviction, and sentence being
4 imposed by a jury from which African Americans and
5 other minorities were systematically excluded and
6 under-represented.
7 (4) Did you receive an evidentiary hearing on your petition,
8 application or motion? Yes No ×
9 (5) Result: Denial of the Writ for Habeas Corpus
10 (6) Date of Result: February 4, 2005
11 (7) If known, citations of any written opinion or date of orders
12 entered pursuant to such result: District Court entered an
13 order of denial on February 4, 2005; Nevada Supreme Court
14 affirmed the denial on February 16, 2006. Nevada v. Floyd,
15 Order of Affirmance (Feb. 16, 2006).
16 (b) As to any second petition, application or motion, give the same
17 information:
18 (1) Name of court: Eighth Judicial District Court
19 (2) Nature of proceeding: Successive Petition for Writ of Habeas
20 Corpus
21 (3) Grounds raised:
22
23
8
1 I. Floyd’s convictions and death sentence are invalid
2 under state and federal constitutional guarantees of
3 due process, equal protection, the effective assistance
4 of counsel, and a reliable sentence due to the
5 ineffective assistance of counsel.
6 II. Floyd’s conviction and death sentence are invalid
7 under state and federal constitutional guarantees of
8 due process, equal protection, right to effective
9 assistance of counsel, a fair trial and a reliable
10 sentencing because Floyd was deprived of expert
11 assistance to aid in his defense during the guilt and
12 penalty phases of his trial.
13 III. Floyd’s conviction and death sentence are invalid
14 under state and federal constitutional guarantees of
15 due process, equal protection, trial before an impartial
16 jury, and a reliable sentence in violation of U.S.
17 Constitutional Amends. V, VI, VIII, & XIV and Nev.
18 Const. Art. I, IV, because he is actually innocent of
19 first-degree murder.
20 IV. Floyd’s conviction and death sentence are invalid
21 because Floyd’s state and federal constitutional
22 guarantees of due process, equal protection, trial
23
9
1 before an impartial jury, and a reliable sentence were
2 violated because of prosecutorial misconduct.
3 V. Floyd’s conviction and death sentence are invalid
4 under the state and federal constitutional guarantees
5 of due process, equal protection, trial before an
6 impartial jury, a reliable sentence, and protection from
7 cruel and unusual punishment because Nevada law
8 fails to properly channel death sentences by limiting
9 the scope of victim-impact testimony.
10 VI. Floyd’s conviction and death sentence are invalid
11 under state and federal constitutional guarantees of
12 due process, equal protection, a reliable sentence, an
13 impartial jury, and the effective assistance of counsel
14 due to the improper actions of the trial court during
15 the voir dire proceedings which deprived Floyd of his
16 right to a fair and impartial jury.
17 VII. Floyd’s conviction and death sentence are invalid
18 under the state and federal constitutional guarantees
19 of due process, equal protection, trial before an
20 impartial jury, and a reliable sentence because of the
21 trial court’s failure to grant a change of venue and
22 sequester the jury.
23
10
1 VIII. Floyd’s conviction and death sentence are invalid
2 under the constitutional guarantees of a trial before an
3 impartial jury, due process, and a reliable sentence
4 because the trial court failed to properly instruct the
5 jury.
6 IX. Floyd was deprived of his state and federal
7 constitutional rights to communicate with counsel, to
8 the effective assistance of counsel, due process, equal
9 protection, and a reliable sentence due to the jurors
10 viewing him in prison clothes, handcuffs, and shackles.
11 X. Floyd’s conviction and death sentence are invalid
12 under the federal constitutional guarantees of due
13 process, equal protection, and a reliable sentence
14 because of the failure to preserve Floyd’s blood sample.
15 XI. Floyd was deprived of his state and federal
16 constitutional right to adequate notice of the charges
17 against him, a pretrial review of probable cause to
18 support aggravating factors as elements of capital
19 eligibility, due process of law and a reliable sentence
20 by the failure to submit all the elements of capital
21 eligibility to the grand jury or to the court for a
22 probable cause determination.
23
11
1 XII. Floyd’s conviction and death sentence are invalid
2 under state and federal constitutional guarantees of
3 due process, equal protection, trial before an impartial
4 jury, and a reliable sentence because of the trial
5 court’s failure to grant a motion to sever counts
6 relating to events at his apartment from those relating
7 to events at the Albertson’s store.
8 XIII. Floyd’s death sentence is invalid under state and
9 federal constitutional guarantees of due process of law,
10 equal protection of the laws, and a reliable sentence
11 due to the failure of the Nevada Supreme Court to
12 conduct fair and adequate appellate review.
13 XIV. Floyd’s death sentence is invalid under federal
14 constitutional guarantees of due process, equal
15 protection, and a reliable sentence because the Nevada
16 capital punishment system operates in an arbitrary
17 and capricious manner.
18 XV. Floyd’s death sentence is invalid under the federal
19 constitutional guarantees of due process, equal
20 protection, and a reliable sentence because execution
21 by lethal injection violates the constitutional
22 prohibition against cruel and unusual punishment.
23
12
1 XVI. Floyd’s conviction and sentence violate the
2 constitutional guarantees of due process of law, equal
3 protection of the laws, a reliable sentence, and
4 international law because Floyd’s capital trial and
5 sentencing and review on direct appeal were conducted
6 before state judicial officers whose tenure in office was
7 not dependent on good behavior but whose tenure was
8 dependent on popular election.
9 XVII. Floyd’s conviction and death sentence are invalid
10 under the federal constitutional guarantees of due
11 process, equal protection, right to counsel, and a
12 reliable sentencing because the State improperly
13 withheld exculpatory evidence in violation of U.S.
14 Const. Amends. V, VI, VIII, and XIV, and Nev. Const.
15 Art. I, IV.
16 XVIII. Floyd’s conviction and death sentence are invalid
17 under state federal and constitutional guarantees of
18 due process, equal protection, the effective assistance
19 of counsel, a fair tribunal, an impartial jury, and a
20 reliable sentence due to the cumulative errors in the
21 admission of evidence and instructions, gross
22 misconduct by state officials and witnesses, and the
23
13
1 systematic deprivation of Floyd’s right to the effective
2 assistance of counsel.
3 XIX. Floyd’s conviction and death sentence are invalid
4 under the federal constitutional guarantees of due
5 process, equal protection, the effective assistance of
6 counsel, a fair tribunal, an impartial jury, and a
7 reliable sentence due to the use of peremptory strikes
8 against women in a discriminatory manner.
9 (4) Did you receive an evidentiary hearing on your petition,
10 application or motion? Yes × No
11 (5) Result: Petition dismissed as procedurally barred.
12 (6) Date of result: April 2, 2008
13 (7) If known, citations of any written opinion or date of orders
14 entered pursuant to such result: Case No. C159897,
15 dismissed petition as procedurally barred on April 2, 2008.
16 Nevada Supreme Court affirmed dismissal on January 19,
17 2011
18 (d) As to any third petition, application or motion, give the same
19 information:
20 (1) Name of court: Federal District Court, District of Nevada
21 (2) Nature of proceeding: Second Amended Petition for Writ of
22 Habeas Corpus
23
14
1 (3) Grounds raised:
2 I. Floyd’s convictions and death sentence are invalid
3 under federal constitutional guarantees of due process,
4 equal protection, and a reliable sentence due to the
5 ineffective assistance of counsel.
6 II. Floyd’s conviction and death sentence are invalid
7 under federal constitutional guarantees of due process,
8 equal protection, the right to effective assistance of
9 counsel, the right to a fair trial and the right to a
10 reliable sentence because Floyd was deprived of expert
11 assistance to aid in his defense during the guilt and
12 penalty phases of his trial.
13 III. Floyd’s conviction and death sentence are invalid
14 under federal constitutional guarantees of due process,
15 equal protection, a trial before an impartial jury, and a
16 reliable sentence because he is actually innocent of
17 first-degree murder.
18 IV. Floyd’s conviction and death sentence are invalid
19 under federal constitutional guarantees of due process,
20 equal protection, a reliable sentence, an impartial jury,
21 a fair tribunal, and the effective assistance of counsel
22 due to the improper actions of the trial court during
23
15
1 the voir dire proceedings which deprived Floyd of his
2 right to a fair and impartial jury.
3 V. Floyd’s conviction and death sentence are invalid
4 under the federal constitutional guarantees of due
5 process, equal protection, a trial before an impartial
6 jury, and a reliable sentence because of the trial
7 court’s failure to grant a change of venue and
8 sequester the jury.
9 VI. Floyd’s conviction and death sentence are invalid
10 under the constitutional guarantees of a trial before an
11 impartial jury, due process, equal protection and a
12 reliable sentence because the trial court failed to
13 properly instruct the jury.
14 VII. Floyd’s conviction and death sentence are invalid
15 under the federal constitutional guarantees of due
16 process, equal protection, trial before an impartial
17 jury, a reliable sentence, and protection from cruel and
18 unusual punishment because Nevada law fails to
19 properly channel death sentences by limiting the scope
20 of victim-impact testimony.
21 VIII. Floyd was deprived of his federal constitutional rights
22 to communicate with counsel, to the effective
23
16
1 assistance of counsel, due process, equal protection,
2 and a reliable sentence due to the jurors viewing him
3 in prison clothes, handcuffs, and shackles.
4 IX. Floyd’s conviction and death sentence are invalid
5 under federal constitutional guarantees of due process,
6 equal protection, trial before an impartial jury, and a
7 reliable sentence because of the trial court’s failure to
8 grant a motion to sever counts relating to events at his
9 apartment from those relating to events at the
10 Albertson’s.
11 X. Floyd’s conviction and death sentence are invalid
12 because Floyd’s federal constitutional guarantees of
13 due process, equal protection, trial before an impartial
14 jury and a reliable sentence were violated due to
15 severe and pervasive prosecutorial misconduct.
16 XI. Floyd’s death sentence is invalid under the federal
17 constitutional guarantees to freedom from cruel and
18 unusual punishment, due process, equal protection, a
19 reliable sentence, and compliance with international
20 law because execution by lethal injection is
21 unconstitutional under all circumstances, and
22
23
17
1 specifically because it violates the constitutional
2 prohibition against cruel and unusual punishments.
3 XII. Floyd’s conviction and sentence violate the federal
4 constitutional guarantees of due process, equal
5 protection, a reliable sentence, and international law
6 because Floyd’s capital trial, sentencing and review on
7 direct appeal were conducted before state judicial
8 officers whose tenure in office was not dependent on
9 good behavior but was rather dependent on popular
10 election, and who failed to conduct fair and adequate
11 appellate review.
12 XIII. Floyd was deprived of his federal constitutional right
13 to adequate notice of the charges against him, a
14 pretrial review of probable cause to support
15 aggravating factors as elements of capital eligibility,
16 due process of law and a reliable sentence by the
17 failure to submit all the elements of capital eligibility
18 to the grand jury or to the court for a probable cause
19 determination..
20 XIV. Floyd’s death sentence is invalid under the federal
21 constitutional guarantees of due process, equal
22 protection, and a reliable sentence because the Nevada
23
18
1 capital punishment system operates in an arbitrary
2 and capricious manner.
3 XV. Floyd’s conviction and death sentence are invalid
4 under the federal constitutional guarantees of due
5 process, equal protection, the effective assistance of
6 counsel, a fair tribunal, an impartial jury, and a
7 reliable sentence due to the use of peremptory strikes
8 against women in a discriminatory manner.
9 XVI. Floyd’s conviction and death sentence are invalid
10 under federal constitutional guarantees of due process,
11 equal protection, a fair tribunal, the effective
12 assistance of counsel, an impartial jury, and a reliable
13 sentence due to the cumulative errors in the admission
14 of evidence and instructions, gross misconduct by state
15 officials and witnesses, and the systematic deprivation
16 of Floyd’s right to the effective assistance of counsel.
17 (4) Did you receive an evidentiary hearing on your petition,
18 application or motion? Yes No ×
19 (5) Result: dismissed as claims were either procedurally barred
20 or invalid on the merits
21 (6) Date of result: August 20, 2012 (procedural dismissal);
22 September 22, 2014 (merits-based dismissal)
23
19
1 (7) If known, citations of any written opinion or date of orders
2 entered pursuant to such result: Case no. 2:06-CV-0471-
3 PMP-CWH; August 20, 2012, September 22, 2014
4 Has any ground being raised in this petition been previously presented to
5 this or any other court by way of petition for habeas corpus, motion, application or
6 any other post-conviction proceeding? No If so, identify:
7 Which of the grounds is the same: N/A
8 The proceedings in which these grounds were raised: N/A
9 Briefly explain why you are again raising these grounds. N/A
10 If any of the grounds listed in Nos. 23(a), (b), (c) and (d), or listed on any
11 additional pages you have attached, were not previously presented in any other
12 court, state or federal, list briefly what grounds were not so presented, and give
13 your reasons for not presenting them. (You must relate specific facts in response to
14 this question. Your response may be included on paper which is 8 ½ by 11 inches
15 attached to the petition. Your response may not exceed five handwritten or
16 typewritten pages in length.). See Grounds For Relief Claims One through Five
17 below:
18 (a) Claim One has been raised for the first time in the instant
19 petition. Claim One was not previously raised because the factual basis of the claim
20 did not exist during any of the prior state proceedings. The factual basis for Claim
21 One is based upon new scientific evidence demonstrating the equivalence in
22 adaptive functioning deficits between individuals who suffer from Intellectual
23
20
1 Disability (ID) and those who suffer from fetal alcohol spectrum disorder (FASD)
2 and delayed brain development due to a combination of age and FASD. Based on
3 this new science, Zane Floyd is categorially ineligible for execution and this Court
4 must decline to sign the execution warrant proffered by the State. In the alternative
5 this Court should stay its decision on the execution warrant until Floyd has had the
6 opportunity to receive factual development on its claim of categorial exclusion from
7 the death penalty. Floyd is entitled to a stay until he has been able to fully litigate
8 the instant petition. 176.415(6), NRS 176.486, 176.487(3)-(6) (stay of execution
9 required when necessary to litigate pending habeas petition).
10 (b) Claim Two has been raised for the first time in the instant
11 petition. The factual basis for the claim is that Floyd has been deprived of an
12 adequate and meaningful opportunity to seek commutation of his death sentence
13 with the Nevada Board of Pardons. The factual basis for Claim Two was not known
14 until the State announced it intended to seek a warrant for Floyd’s execution
15 without giving Floyd the opportunity to pursue clemency. Claim Two is accordingly
16 not procedurally defaulted from review by this Court. NRS 176.415(6), NRS
17 176.486, NRS 176.487(3)-(6) (stay of execution required when necessary to litigate
18 pending habeas petition). Floyd is entitled to a stay until he has been able to fully
19 litigate this Claim. Id.
20 (c) Claim Three has been raised for the first time in the instant
21 petition. The factual basis for the Claim was not available during prior state court
22 proceedings. The State has only just notified Floyd that it intends to effectuate his
23
21
1 execution at the Ely State Prison (ESP), not NSP as was stated in the prior
2 pleadings seeking an execution warrant. Floyd’s argument that NRS 176.355(3)
3 requires his execution to occur at NSP was therefore not ripe for review before he
4 received notice of the State’s instant proposed execution warrant in its addendum.
5 Claim Three is accordingly not procedurally defaulted from review by this Court.
6 NRS 176.415(6), NRS 176.486, 176.487(3)-(6) (stay of execution required when
7 necessary to litigate pending habeas petition). Floyd is entitled to a stay until he
8 has been able to fully litigate this Claim. Id.
9 (d) Claim Four has been raised for the first time in the instant
10 petition. Claim Four is based on the testimony of Nevada Department of
11 Corrections (NDOC) Director Charles Daniels in federal court on May 6, 2021,
12 which means the factual basis for the claim was not available during prior state
13 proceedings. Daniels’s testimony demonstrates that the NDOC is not capable of
14 conducting an execution that complies with the state and federal constitutions
15 during the time period stated in the State’s warrant of execution. Thus, Claim Four
16 is not procedurally defaulted from review by this Court. NRS 176.415(6), NRS
17 176.486, NRS 176.487(3)-(6) (stay of execution required when necessary to litigate
18 pending habeas petition). Floyd is entitled to a stay until he has been able to fully
19 litigate this Claim. Id.
20 (e) Claim Five has been raised for the first time in the instant
21 petition. Claim Five was not previously raised because the legal basis of the claim
22 did not exist during any of the prior state proceedings. Claim Five is based upon
23
22
1 new intervening authority from the Nevada Supreme Court in Petrocelli v. State,
2 No. 79069 (Nev. May 21, 2021) (Order of Reversal and Remand). Claim Five is
3 accordingly not procedurally defaulted from review by this Court. 176.415(6), NRS
4 176.486, 176.487(3)-(6) (stay of execution required when necessary to litigate
5 pending habeas petition). Floyd is entitled to a stay until he has been able to fully
6 litigate this Claim. Id.
7 Are you filing this petition more than one year following the filing of the
8 judgment of conviction or the filing of a decision on direct appeal? If so, state briefly
9 the reasons for the delay. (You must relate specific facts in response to this
10 question. Your response may be included on paper which is 8 ½ by 11 inches
11 attached to the petition. Your response may not exceed five handwritten or
12 typewritten pages in length.) Yes; see question 21(a) and (b) above.
13 Do you have any petition or appeal now pending in any court, either state or
14 federal, as to the judgment under attack? Yes No ×
15 If yes, state what court and the case number:
16 Give the name of each attorney who represented you in the proceeding
17 resulting in your conviction and on direct appeal:
18 (f) Pre-trial, Trial, and Sentencing Proceedings:
19 Curtis Brown (Clark County Public Defender)
20 Douglas Hedger (Clark County Public Defender)
21 (b) First Direct Appeal:
22 Morgan Harris (Clark County Public Defender)
23
23
1 Marcus D. Cooper (Clark County Public Defender)
2 Robert Miller (Clark County Public Defender)
3 (c) State Post-Conviction:
4 David Schieck (Private)
5 Do you have any future sentences to serve after you complete the sentence
6 imposed by the judgment under attack: Yes No x
7 State concisely every ground on which you claim that you are being held
8 unlawfully. Summarize briefly the facts supporting each ground. If necessary, you
9 may attach pages stating additional grounds and facts supporting same.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
1 GROUNDS FOR RELIEF
2 Floyd alleges the following grounds for relief from the judgment of conviction
3 and sentence. References in this Petition to the accompanying exhibits incorporate
4 the contents of the exhibit as if fully set forth herein.
5 CLAIM ONE: Fetal Alcohol Spectrum Disorder Renders Floyd Ineligible for Execution 6 Zane Floyd’s death sentence is invalid under state and federal constitutional 7 guarantees of due process, equal protection, a reliable sentence, and freedom from 8 cruel and/or unusual punishments because his Fetal Alcohol Spectrum Disorder 9 categorically removes him from the class of offenders that may be punished by the 10 death penalty. U.S. Const. amends V, VI, VIII, XIV; Nev. Const. Art. I, § 1, 5, 6, 8; 11 Art. 4, § 21. 12 SUPPORTING FACTS 13 Floyd is categorically exempt from the death penalty, as he suffers from Fetal 14 Alcohol Spectrum Disorder (FASD), stemming from prenatal exposure to alcohol. 15 Further, Floyd is exempt from capital punishment because his brain was not fully 16 developed at the time of the offense due to his prenatal exposure to alcohol which 17 would have had an additive and cumulative effect on the brain damage he was born 18 with. 19 The litany of deficits suffered by Floyd are akin to those identified by the 20 United States Supreme Court in Atkins v. Virginia, 536 U.S. 304, 318, 320–21 21 (2002) and Roper v. Simmons, 543 U.S. 551, 578 (2005), and require his exclusion 22 from the class of persons eligible for the death penalty. See also Scott E. Sundby, 23
25
1 The True Legacy of Atkins and Roper: The Unreliability Principle, Mentally Ill
2 Defendants, and the Death Penalty’s Unraveling, 23 Wm. & Mary Bill Rts. J. 487,
3 512–24 (2014). As such, Floyd is ineligible for the death penalty and this Court
4 must set aside his death sentence and decline to sign the State’s warrant requesting
5 his execution.
6 A. FASD is Equivalent to Intellectual Disability
7 Floyd has been diagnosed with FASD. Ex. 1 at ¶15; Ex. 2 at ¶9, ¶18, ¶24,
8 ¶25. As will be discussed below, Floyd’s FASD is a “brain-based, congenial, lifelong,
9 impactful disorder” with corresponding adaptive functioning deficits analogous to
10 “Intellectual Disability (ID) Equivalence,” making him ineligible for the death
11 penalty. Ex. 2 at ¶9, ¶32.
12 1. Brief Summary of FASD
13 A fetus is susceptible to damage from alcohol exposure throughout the
14 mother’s pregnancy. Prenatal alcohol exposure typically causes widespread
15 structural damage throughout the fetus’ brain. Ex. 2 at ¶14. Alcohol exposure
16 during pregnancy is a major known cause of birth defects, neurodevelopmental
17 disorders, and learning disabilities. Id.
18 The toxic effects of prenatal alcohol exposure are widespread throughout the
19 brain causing potent irregularities in brain structure that compromise the brain
20 function and impact cognition and behavior. Ex. 2 at ¶14.
21 FASD in an umbrella term that encompasses all the medical conditions
22 caused by prenatal alcohol exposure described in the diagnostic guidelines
23
26
1 published in 1996 by the Institute of Medicine. Ex. 2 at ¶14 (fetal alcohol syndrome
2 (FAS), partial FAS, alcohol related neurodevelopmental disorder (ARND), and
3 alcohol related birth defects (ARBD)). Under the Diagnostic and Statistical Manual
4 of Mental Disorders 5 (DSM-5), the term FASD also includes the diagnosis for the
5 Central Nervous System (CNS) dysfunction due to prenatal alcohol exposure:
6 neurodevelopmental disorder associated with prenatal alcohol exposure (ND-
7 PAE/FASD). Id. This diagnosis requires evidence of prenatal alcohol exposure, at
8 least one impairment in neurocognitive functioning, at least one impairment in self-
9 regulation, and at least two domains of adaptive impairment. Id.
10 Organic brain damage in FASD directly impairs the cognitive skills needed to
11 think adequately and self-regulate one’s behavior. Ex. 2 at ¶19. In turn, cognitive
12 dysfunction in FASD impairs adaptive functioning. Id. Of the many possible
13 cognitive impairments in FASD, executive dysfunction is the most serious because
14 the executive system controls self-regulation, conscious decision-making, and
15 everyday adaptive behavior. Ex. 2 at ¶14. Prenatal exposure creates
16 hypersensitivity to stress via faulty neurological hard-wiring of the hypothalamic-
17 pituitary-adrenal system which causes chronic overreaction to stressful events. Id.
18 But because of the executive functioning deficits, individuals with FASD lack the
19 top-down moderating influence of a fully functioning prefrontal cortex. Id. As a
20 result, those with FASD are prone to act out their emotions, particularly in high
21 stress everyday situations. Id.
22
23
27
1 It is not surprising then that a deficient adaptive profile is a universal
2 finding in persons with FASD. The DSM-5 defines adaptive functioning as
3 everyday behavior that meets developmental and sociocultural standards for
4 personal independence and social responsibility. Ex. 2 at ¶14.
5 2. Floyd Suffers From ND-PAE/FASD
6 Floyd meets the current diagnosis under the DSM-5 for the CNS impairment
7 in FASD. Ex. 2 at ¶24, ¶25, ¶28.
8 First, Floyd’s mother has a well-documented history of drinking while
9 pregnant with Floyd. Ex. 2 at ¶24.
10 Second, testing from 1989, 2000, and 2006 demonstrates that Floyd suffers
11 from neurocognitive impairments in four areas (although only one area is needed for
12 a diagnosis): sub-test discrepancies in intellectual testing; complex visuospatial
13 memory deficits; academic learning disabilities; and deficits in visuospatial
14 construction. Ex. 2 at ¶19, ¶24.
15 Third, Floyd suffers from impairments in three areas of self-regulation
16 (although only one is needed): attention, impulse control, and problem solving. Ex. 2
17 at ¶24.
18 Fourth, Floyd suffers from adaptive impairments in four areas (although only
19 two are needed): communication, daily living skills, socialization, and motor
20 coordination. Ex. 2 at ¶18, ¶24.
21 Further, Floyd’s FASD is long standing from childhood and his FASD causes
22 clinically significant distress or impairment in social, occupational, or other
23
28
1 important areas of functioning. Ex. 2 at ¶24. And finally, Floyd’s FASD is not better
2 explained by the direct physiological effects of postnatal use of a substance, a
3 general medical condition other than FASD, a genetic condition, or environmental
4 neglect. Id.
5 Floyd also suffers from secondary disabilities from his FASD. According to
6 studies, children with FASD are at a very high risk of negative developmental
7 outcomes. Ex. 2 at ¶22. In Floyd’s case, the secondary disabilities include disrupted
8 education, mental health problems, substance abuse, employment problems, and
9 dependent living. Id.
10 3. FASD is ID Equivalent from the Perspective of Floyd’s Moral Culpability 11 FASD and ID are both classified by DSM-5 as neurodevelopmental disorders 12 meaning both disorders typically: (1) manifest early in development, often before 13 grade school; (2) are characterized by developmental deficits that produce 14 impairments of personal, social, academic, or occupational functioning; and (3) 15 involve a range of developmental deficits that vary from the very specific limitations 16 of learning or control of executive functions to global impairments of social skills or 17 intelligence. Ex. 2 at ¶26. 18 DSM-5 diagnoses can be classified by disability severity. One way to measure 19 disability severity is by definitional complexity: the number of domains that must 20 be impaired under the DSM-5 to meet diagnostic criteria. ID and FASD are similar 21 in that both require five diagnostic elements: neurocognitive deficit (executive 22
23
29
1 function); adaptive function deficits; deficits that significantly interfere with
2 functioning; and deficits that constitute a lifelong disorder. Ex. 2 at ¶30.
3 Further, the adaptive functioning component is a more stringent requirement for
4 FASD (impairments in two categories) while ID only requires one impaired adaptive
5 domain. Id.
6 Disability severity also can be compared in terms of how extensively a
7 disorder typically impairs functional capacity. FASD impairs nineteen domains of
8 functional capacity while ID impairs twenty-one. Thus, both are similar in terms of
9 widespread functional deficiency in both cognition and adaptive functioning. Ex. 2
10 at ¶30.
11 Another way of looking at disability severity is the risk of adverse
12 developmental outcomes, including secondary disabilities. Individuals with FASD
13 are at a much greater risk of a negative developmental trajectory than those with
14 ID: FASD has negative developmental outcomes in nineteen areas while ID has
15 negative developmental outcomes in only nine areas. Ex. 2 at ¶30. ID is a mild
16 severity disability compared to FASD in terms of negative life course outcomes. Id.
17 However, most people with FASD and ID cannot live independently in society as
18 adults. Id.
19 Whether measured by definitional complexity, functional capacity, or
20 outcome risk, FASD is equal to and in some cases a more severe disorder than ID.
21 Thus, FASD is deserving of being viewed under the category of “ID Equivalence.”
22 Ex. 2 at ¶31.
23
30
1 Both ID and FASD stem from permanent structural brain damage. Ex. 2 at
2 ¶31. Typically, ID is diagnosed by a single provider (mental health provider or
3 pediatrician) and requires relatively minimal testing (IQ and adaptive assessment).
4 Id. FASD on the other hand is diagnosed by a multidisciplinary team comprised of a
5 neuropsychologist, adaptive functioning specialist, and a medical doctor to access
6 physical indicia of FASD. Thus, FASD requires more resources to diagnose. Id.
7 While IQ distinguishes ID from FASD in the majority of FASD individuals,
8 executive and everyday functioning in both conditions tends to be identical.
9 Significant discrepancies in IQ domains are seen frequently in persons with FASD,
10 as is the case here with Floyd, which makes full scale IQ an inaccurate way to
11 classify functional deficiency in FASD. Ex. 2 at ¶19, ¶31. Full scale IQ also has
12 become less important in ID, according to the DSM-5, as “intellectual deficiency now
13 is defined as a broad array of mixed impairments that mostly involve executive
14 dysfunction.” Id. Further, executive functioning tends to be universally impaired in
15 FASD as well as ID. Id.
16 Both ID and FASD have an adaptive impairment diagnostic criteria in the
17 DSM-5 (one deficient domain for ID and two deficient domains for FASD), making
18 individuals with FASD and ID indistinguishable in terms of everyday behavior. Ex.
19 2 at ¶31.
20 Of particular interest is that FASD is the leading cause of ID and is
21 misdiagnosed or undiagnosed more than ID. Ex. 2 at ¶31. In children with FASD,
22 average or low-average IQs in the context of learning disabilities, self-regulation
23
31
1 problems, social deficits, and interpersonal difficulties often lead teachers and
2 providers to attribute the difficulties to parenting deficiency. Id. Thus FASD is very
3 much a hidden disability. Id.
4 Symptom manifestation in both FASD and ID is lifelong and permanent. Ex.
5 2 at ¶31. With regard to ID, symptom course remains relatively stable over the
6 developmental years into adulthood, but FASD symptoms become more complex
7 and debilitating, leading to greater adaptive severity into adulthood. Id.
8 Life expectancy in males in the general population is seventy-six years. Ex. 2
9 at ¶31. For males with ID, life expectancy is seventy-four years and it is only thirty-
10 four years with FASD. Thus, FASD has a greatly increased risk of mortality
11 compared to ID. Id.
12
13
14
15
16
17
18
19
20
21
22
23
32
1 4. Summary
2 Floyd’s FASD diagnosis under the DSM-5, ND-PAE, is a brain-based, life-
3 long impactful disorder deserving of the classification “ID Equivalence.” Regardless
4 of how severity is measured—definitional complexity, diagnostic protocol, functional
5 capacity, risk of negative outcomes, cognitive dysfunction, adaptive dysfunction,
6 comorbidity, likelihood of misdiagnosis, lifetime course, or mortality—Floyd’s FASD
7 is similar to ID with broad ramifications that have affected all important functional
8 domains in his life. Ex. 2 at ¶32. Thus, like the categorical exclusion of an
9 individual with ID to capital punishment, Atkins, 536 U.S. at 320–21,1 here, Floyd’s
10 FASD too should make him ineligible for the death penalty. Because of his FASD,
11 Floyd’s execution would constitute cruel or unusual punishment.
12 The execution of a person such as Floyd who suffers from FASD is prejudicial
13 per se, and no additional showing of prejudice is required. Therefore, this Court
14 must permanently set aside his death sentence and refuse to sign the warrant for
15 his execution that has been sought by the State. Floyd’s case should therefore be set
16 for resentencing where the death penalty is not a sentencing option.
17
18
19
20 1 The Atkins Court found that the consensus against executing individuals 21 with intellectual disability “unquestionably reflects widespread judgment about the relative culpability of mentally retarded offenders, and the relationship between mental retardation and the penological purposes served by the death penalty. 22 Additionally, it suggests that some characteristics of mental retardation undermine the strength of the procedural protections that our capital jurisprudence steadfastly 23 guards.” Atkins, 536 U.S. at 317.
33
1 B. Floyd is Ineligible for Execution Because of His Age at the Time of the Incident 2 In Roper v. Simmons, 543 U.S. 551, 578 (2005), the Supreme Court 3 established a categorical rule forbidding the execution of offenders under the age of 4 eighteen when their crimes were committed. The Court relied in large part on three 5 “general differences” between juveniles under eighteen and adults, “demonstrat[ing] 6 that juvenile offenders cannot with reliability be classified among the worst 7 offenders.” Id. at 569. Pointing to scientific and sociological studies, the Court noted 8 that juveniles exhibit a “‘lack of maturity and an underdeveloped sense of 9 responsibility,’” which “‘often result in impetuous and ill-considered actions and 10 decisions.’” Id. 11 The Court in Roper also recognized juveniles are “more vulnerable or 12 susceptible to negative influences and outside pressures, including peer pressure.” 13 Id. Finally, the Court explained “the character of a juvenile is not as well formed as 14 that of an adult.” Id. at 570 (personality traits of juveniles more transitory, less 15 fixed). Noting “the death penalty is reserved for a narrow category of crimes and 16 offenders,” the Court concluded that juveniles under the age of eighteen simply 17 “cannot with reliability be classified among the worst offenders.” Id. at 568-69. 18 In addition to the lesser culpability of juvenile offenders, the Court adopted a 19 categorical exemption from the death penalty because the status as a juvenile 20 prevents the finder of fact from giving full effect to mitigation evidence. See Roper, 21 543 U.S. at 573 (“An unacceptable likelihood exists that the brutality or cold- 22 blooded nature of any particular crime would overpower mitigating arguments 23
34
1 based on youth as a matter of course, even where the juvenile offender’s objective
2 immaturity, vulnerability, and lack of true depravity should require a sentence less
3 severe than death.”). The Eighth Amendment requires a reliable and individualized
4 decision in capital cases. See Lockett v. Ohio, 438 U.S. 586, 605 (1978) (plurality
5 opinion) (Burger, C.J., Stewart, Powell, Stevens, JJ.). This individualized decision
6 precludes the introduction of factors that create “the risk that the death penalty will
7 be imposed in spite of factors which may call for a less severe penalty.” Id. Only by
8 ensuring that the sentencer considers and gives effect to a capital defendant’s
9 mitigation evidence can a court ensure the Eighth Amendment’s right to a reliable
10 sentencing determination. Id.
11 Extending Roper to Floyd, who committed the offense at age twenty-three, is
12 required under the Eighth and Fourteenth Amendments. Indeed, Roper itself was
13 an extension of Thompson v. Oklahoma, which precluded the execution of offenders
14 under the age of sixteen. See Roper, 543 U.S. at 561-62 (discussing Thompson v.
15 Oklahoma, 487 U.S. 815 (1988)). Although Roper drew a cut-off at age eighteen, the
16 rationale of Roper extends to individuals age twenty-three because the human brain
17 continues to develop beyond the age of eighteen. Even Roper recognized “[t]he
18 qualities that distinguish juveniles from adults do not disappear when an individual
19 turns 18.” Id. at 574. This reasoning is particularly applicable to individuals like
20 Floyd whose cognitive functioning is actually below that of their chronological age.
21 Ex. 2 at ¶41.
22
23
35
1 Born with widespread brain damage, people with FASD exhibit abnormal
2 and delayed brain maturation across the developmental years. Ex. 2 at ¶38. Studies
3 have found that significant maturation alterations and delays in the prefrontal
4 cortex and its microstructure in children, adolescents, and adults with prenatal
5 alcohol exposure compared to normally developing age peers. Id. Compared with
6 normal changes in brain structure during adolescence that improve speed and
7 efficiency of neurochemical communication, research finds that individuals with
8 prenatal alcohol exposure show: (1) blunted volume changes in grey matter in
9 adolescence, indicating compromised pruning and diminished plasticity in the
10 cerebral cortex, as well as (2) delayed white matter myelination. Id. Together these
11 two brain development abnormalities in individuals with prenatal alcohol exposure
12 significantly impair global network efficiency, speed of information processing, and
13 executive self-regulation. Id.
14 Other studies show the following with respect to individuals exposed to
15 prenatal exposure: normal processes of brain maturation were significantly delayed
16 or disrupted in children and adolescents; smaller volumes in structure throughout
17 the brain, with significantly different trajectories of brain activation in visuospatial
18 attention and working memory tasks; smaller total brain volume as well as smaller
19 volume of both white and grey and white matter in specific cortical regions;
20 alternations in the shape and volume of the corpus callosum, as well as small
21 volume in the basal ganglia and hippocampi; reduced functional connectivity
22 between cortical and deep grey matter structures; impaired white matter integrity
23
36
1 in communication tracts throughout the brain throughout development; and
2 abnormalities in white matter pathways important in self-regulation. Ex. 2 at ¶¶39-
3 40.2
4 Given the normally-developing adolescent brain does not have mature
5 executive control capacity until at least the age of twenty-five and brain
6 development in young adults with FASD lag many years behind rates seen in
7 neurotypical age peers, it is likely that Floyd’s brain was not fully developed at the
8 time of the offense due to his ND-PAE/FASD, which would have had an additive
9 and cumulative effect on the brain damage he was born with. Ex. 2 at ¶41. Because
10 Floyd was twenty-three at the time of the offenses, he is categorically exempt from
11 the death penalty under the rational of Roper.
12 Allowing a person like Floyd who is categorically exempt from the death
13 penalty to remain on death row is prejudicial per se and would constitute cruel or
14 unusual punishment. Floyds’ death sentence must be vacated and permanently set
15 aside.
16
17
18 2 See also Kevin J. Holt, The Inbetweeners: Standardizing Juvenileness and 19 Recognizing Emerging Adulthood for Sentencing Purposes After Miller, 92 Wash. U.L. Rev. 1393, 1396 (2015) (neurological research and social science conclude that 20 cognitive abilities are not fully developed until around age twenty-five; “arbitrary and inconsistent” to choose age eighteen as age offender subject to death penalty); 21 Emily Buss, What the Law Should (and Should Not) Learn from Child Development Research, 38 Hofstra L. Rev. 13, 38-39 (2009) (Court’s decision to place cutoff at age 22 eighteen in Roper was inconsistent and arbitrary in light of child development research). 23
37
1 C. Cruel or Unusual Punishment
2 The Nevada Supreme Court has long recognized its ability to find greater
3 constitutional protections under the state constitution than under the federal
4 constitution. See, e.g., State v. Kincade, 129 Nev. 953, 956, 317 P.3d 206, 208 (2013)
5 (“states are permitted to provide broader protections and rights than provided by
6 the U.S. Constitution.”).3 Here, especially, there is cause to construe the Nevada
7 Constitution’s provision more broadly than its federal counterpart: the Nevada
8 Constitution independently prohibits cruel punishments and unusual punishments.
9 Compare Nev. Const. art. 1, § 6 (prohibiting “cruel or unusual” punishments) with
10
11
12
13 3 See also Thomas v. Eighth Jud. Dist. Ct., 133 Nev. 468, 469, 402 P.3d 619, 622 (2017); Wilson v. State, 123 Nev. 587, 595, 170 P.3d 975, 980 (2007); State v. 14 Bayard, 119 Nev. 241, 246, 71 P.3d 498, 502 (2003); S.O.C., Inc. v. Mirage Casino- Hotel, 117 Nev. 403, 414, 23 P.3d 243, 250 (2001); State v. Harnisch, 114 Nev. 225, 15 228–29, 954 P.2d 1180, 1182–83 (1998); Zale-Las Vegas, Inc. v. Bulova Watch Co., 80 Nev. 483, 501–02, 396 P.2d 683, 693 (1964) (“We are under no compulsion to follow decisions of the United States Supreme Court which considers such acts in 16 connection with the federal constitution.”); Amicus Br. of Am. Civil Liberties Union of Nev. & Am. Civil Liberties Union Found. [hereinafter ACLU Br.] at 2–11 (Oct. 17 24, 2019) (“history reflects a repeated recognition that the Nevada Constitution, written to address the concerns of Nevada citizens and tailored to Nevada’s unique regional location, is a source of protection for individual rights that is independent 18 of and supplemental to the protections provided by the Federal Constitution.”). 19 Indeed, federal judges have emphasized that state constitutions may offer broader protections than the federal constitution. Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law 16 (2018) (“State 20 courts have authority to construe their own constitutional provisions however they wish. Nothing compels the state courts to imitate federal interpretations of the 21 liberty and property guarantees found in the U.S. Constitution when it comes to the rights guarantees found in their own constitutions, even guarantees that match the federal ones letter for letter.”); William J. Brennan, State Constitutions and the 22 Protection of Individual Rights, 90 Harv. L. Rev. 489, 491 (1977) (“State constitutions, too, are a font of individual liberties, their protections often extending 23 beyond those required by the Supreme Court’s interpretation of federal law.”).
38
1 U.S. Const. am. VIII (prohibiting “cruel and unusual” punishments); Anderson v.
2 State, 109 Nev. 1129, 1134, 865 P.2d 318, 321 (1993).4
3 Thus, even if Floyd does not prevail under the Federal Constitution, he does
4 so under the State Constitution.
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19 4 See also Antonin Scalia & Bryan Garner, Reading Law: The Interpretation 20 of Legal Texts [hereinafter Scalia & Garner, Reading Law] 116, 119 (2012) (describing Conjunctive/Disjunctive Canon and “The Basic Prohibition”: With the 21 conjunctive list, the listed things are individually permitted but cumulatively prohibited. With the disjunctive list, none of the listed things is allowed.”); id. at 116 (“Hence in the well-known constitutional phrase cruel and unusual punishments, 22 the and signals that cruelty or unusualness alone does not run afoul of the clause . . . .”) (italics in original); Br. of Amici Curiae Nev. Law Professors [hereinafter Nev. 23 Law Prof. Br.], at 38–41 (Oct. 3, 2019); ACLU Br. at 11–20.
39
1 CLAIM TWO: Deprivation of Opportunity to Seek Clemency
2 Zane Floyd’s death sentence is invalid under state and federal constitutional
3 guarantees of due process, equal protection, a reliable sentence, and freedom from
4 cruel and/or unusual punishments because he has been deprived of an opportunity
5 to seek clemency before the Pardons Board. U.S. Const. amends V, VI, VIII, XIV;
6 Nev. Const. Art. I, § 1, 5, 6, 8; Art. 4, § 21; 5, § 13, 14; NRS 176.425.
7 SUPPORTING FACTS
8 Article 5, Section 14(2) of the Nevada Constitution allows the Board of
9 Pardons to commute Zane Floyd’s death sentence to a sentence of life without the
10 possibility of parole. For Floyd to be able to vindicate his right to seek commutation
11 of his sentence he must be afforded a meaningful opportunity to investigate and
12 present his case for clemency to the Pardons Board.
13 Floyd has been deprived of the opportunity to seek commutation of his death
14 sentence. Floyd submitted his materials to the State of Nevada Board of Pardons
15 (the Board) on May 27, 2021 to meet the deadline to be placed on the September 21,
16 2021 Board agenda. However, the State is seeking to execute Floyd in late July
17 before Floyd can appear and present his case before the Board. Thus, proceeding
18 with Floyd’s execution now before he has had an opportunity to be heard by the
19 Board violates his state and federal rights to due process of law.
20 “It is an unalterable fact that our judicial system, like the human beings who
21 administer it, is fallible.” Herrera v. Collins, 506 U.S. 390, 415 (1993). The United
22 States Supreme Court has held that “some minimal procedural safeguards apply to
23 clemency proceedings.” Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 289
40
1 (1998) (O’Connor, J., concurring). “Executive clemency [provides] the ‘fail safe’ in
2 our criminal justice system,” and is never more important than when the request for
3 clemency involves an impending execution.” Herrera, 506 U.S. at 415 (quoting K.
4 Moore, Pardons: Justice, Mercy, and the Public Interest 131 (1989)).
5 “[T]he fundamental requirement of due process is the opportunity to be heard
6 at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S
7 319, 333 (1976) (internal quotation marks omitted). Mathews identifies three
8 factors courts should consider in evaluating the requirements of due process:
9 First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, 10 and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's 11 interest, including the function involved and the fiscal and administrative burdens that the additional or 12 substitute procedural requirement would entail. Id. at 335. 13
The Supreme Court has recognized that “process is not an end in itself' and 14 “its constitutional purpose is to protect a substantive interest to which the 15 individual has a legitimate claim of entitlement.” Olim v. Wakinekona, 461 U.S. 16 238, 250 (1983). 17 Floyd’s interest in seeking clemency is a compelling interest as it is a crucial 18 fail-safe mechanism to guard against arbitrary and capricious state action. The 19 deprivation of Floyd’s life through a state-sanctioned execution is irrevocable. And 20 he has not received even minimal procedural due process protections given that the 21 Pardons Board’s next quarterly meeting is not scheduled to occur next until 22 September 21, 2021. 23
41
1 The denial of an opportunity to seek clemency also violates Floyd’s
2 constitutional right to equal protection under the laws. By scheduling Floyd’s
3 execution before he can appear before the Board, the state arbitrarily abridges the
4 process by which Floyd's petition for clemency may be pursued.
5 By scheduling Floyd's execution before he can appear before the Board, the
6 state deprives Floyd of the process historically afforded to death row prisoners to
7 pursue clemency. The Fourteenth Amendment's guarantee of equal protection is
8 violated where “discrimination reflects no policy, but simply arbitrary and
9 capricious action.” Baker v. Carr, 369 U.S. 186, 226 (1962). “The touchstone of due
10 process is protection of the individual against arbitrary action of government.” Wolff
11 v. McDonnell, 418 U.S. 539, 558 (1974). Procedural due process and substantive due
12 process are separate and independent mandates of the Fourteenth Amendment.
13 Brown v. Supreme Court of Nevada, 476 F. Supp. 86, 89 (D. Nev. 1979). Denial of
14 adequate process, applied unevenly, has been recognized as a cognizable claim
15 under the Fourteenth Amendment. See, e.g., Duncan v. State of LA., 391 U.S. 145,
16 148 (1968); Daniel v. State, 119 Nev. 498, 517, 78 P.3d 890, 903 (2003).
17 Floyd will be denied equal protection as he has not received the same process
18 that other death row prisoners have been afforded to pursue clemency. And he will
19 be deprived of due process should his execution occur before he has that
20 opportunity. The deprivation of an opportunity to seek clemency before the Board is
21 prejudicial per se. In the alternative, the State cannot demonstrate beyond a
22
23
42
1 reasonable doubt that the deprivation of an opportunity to seek clemency is
2 harmless.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
43
1 CLAIM THREE: Current Law Operates to Prohibit Floyd’s Execution by Lethal Injection at Ely State Prison 2 Zane Floyd’s death sentence is invalid under state law and the state and 3 federal constitutional guarantees of due process, equal protection, and freedom from 4 cruel and/or unusual punishment as current law in the State of Nevada precludes 5 the execution from occurring at the Ely State Prison. U.S. Const. amend. V, VIII, 6 XIV; Nev. Const. Art. I, §§ 6, 8(2), Art. IV, § 21; NRS 176.355(3). 7 SUPPORTING FACTS 8 Floyd cannot be executed by lethal injection at Ely State Prison (ESP), as 9 NRS 176.355(3) permits executions to only occur at Nevada State Prison (NSP). 10 The State has requested a hearing wherein it intends to obtain an execution 11 warrant from this Court. Initially, the warrant proffered by the State was compliant 12 with state law as it sought Floyd’s execution at NSP, which it referenced correctly 13 as the state prison. However, now the State just filed a pleading on May 10, 2021, 14 where it argues that it made an error and that the location of the execution should 15 have been ESP. While NRS 200.030 permits executions of death sentenced inmates, 16 NRS 176.355 prescribes the manner in which those executions must be carried out. 17 NRS 176.355(3) expressly provides that “[t]he execution must take place at the 18 state prison.” (Emphasis added). Although an execution chamber exists at ESP, the 19 state prison actually referenced in the statute is the now decommissioned Nevada 20 State Prison, in Carson City, Nevada. Accordingly, because the State intends to use 21 the death chamber at ESP as the execution location Floyd’s execution is precluded 22
23
44
1 by current law and this Court must decline to sign the State’s order and warrant
2 requesting his execution at that location.
3 NRS 176.355 is Nevada’s execution statute. It prescribes the method and
4 manner by which lethal injection executions may be carried out within the state,
5 including execution locations. Under NRS 176.355(3), all executions “must take
6 place at the state prison.” See NRS 176.355(3) (emphasis added). This provision
7 clearly requires that any execution in Nevada occur at Nevada State Prison, located
8 in Carson City. In constructing NRS 176.355(3), the Legislature purposefully used
9 the definite article “the,” denoting its intent to limit executions to a singular
10 location, NSP. See Freytag v. Commissioner, 501 U.S. 868, 902 (1991) (Scalia, J.,
11 concurring) (use of the definite article in the Constitution’s conferral of appointment
12 authority on “the Courts of Law” obviously narrows the class of eligible ‘Courts of
13 Law’ to those courts of law envisioned by the Constitution”); Pineda v. Bank of
14 America, N.A., 241 P.3d 870, 875 (Cal. 2010) (“Use of the indefinite articles “a” or
15 “an” signals a general reference, while use of the definite article ‘the’ (or ‘these’ in
16 the instance of plural nouns) refers to a specific person, place, or thing.”).
17 Moreover, Nevada State Prison was the only “state prison” in existence at the
18 time of NRS 176.355’s enactment. ESP and High Desert State Prison were
19 constructed years later and as such could not have been intended to act as “the
20 state prison” referenced in NRS 176.355(3). Although Nevada State Prison is
21 currently decommissioned and other state prisons have been constructed, this fact
22 cannot override the original intent of the Legislature. See Antonin Scalia & Bryan
23
45
1 A. Garner, Reading Law: The Interpretation of Legal Texts 135 (2012) (when a
2 known edifice is cited in a statute, the subsequent construction of an edifice that
3 also falls under the statute does not change the original meaning). Thus, this Court
4 must apply NRS 176.355(3) as it is plainly written and cannot amend the statute to
5 include additional state prisons, as this is a task left solely to the Legislature.
6 Allowing Floyd’s execution to occur at ESP, despite NRS 176.355’s explicit
7 restriction constitutes a violation of current Nevada law as well as the state and
8 federal constitutions. As a matter of due process, the statute creates a liberty
9 interest in Floyd’s favor that cannot be disregarded. Similarly, it violates equal
10 protection principles for Floyd to be treated dissimilarly to similarly situated
11 condemned inmates. Finally, an unlawful execution violates Floyd’s right to be free
12 from cruel and/or unusual punishments. As such, this Court must refuse to sign the
13 warrant for his execution that has been sought by the State and set an evidentiary
14 hearing to determine whether any valid execution could be conducted under current
15 law at NSP.
16 Permitting Floyd’s execution to occur in an unlawful manner is prejudicial
17 per se, and no further showing of prejudice is required.
18
19
20
21
22
23
46
1 CLAIM FOUR: Floyd’s Execution Would Result in Cruel and Unusual Punishment
2 Zane Floyd’s death sentence is invalid under state and federal constitutional
3 guarantees of due process, equal protection, a reliable sentence, and freedom from
4 cruel and unusual punishments because the circumstances surrounding his
5 upcoming execution pose a substantial and unjustified risk of causing cruel pain
6 and suffering, which constitutes cruel and/or unusual punishment. U.S. Const.
7 amends V, VI, VIII, XIV; Nev. Const. Art. I, § 1, 5, 6, 8; Art. 4, § 21.
8 SUPPORTING FACTS
9 The circumstances surrounding Floyd’s upcoming execution constitute cruel
10 and/or unusual punishment in violation of the state and federal constitutions. The
11 last execution in the State of Nevada occurred in 2006, and it was conducted using a
12 lethal injection protocol consisting of sodium thiopental as the first drug in the
13 protocol. Sodium thiopental is a fast-acting barbiturate medication that was used to
14 induce anesthesia so the condemned inmate was insensate and thus unaware when
15 the lethal drugs were administered. Sodium thiopental was the standard drug used
16 in lethal injection protocols across the nation since lethal injection became a method
17 of execution in the 1970s. Sodium thiopental is currently unavailable for use in
18 executions.
19 NDOC does not have, and does not intend to use, an anesthetic agent that
20 reliably produces unawareness before the lethal drugs are administered. Instead,
21 NDOC will likely use a drug that is experimental precisely because it has not
22 previously been used in an execution and thus has not yet been placed on a list of
23 banned drugs that cannot be purchased in normal commerce by a prison pharmacy.
47
1 The choice of a drug based upon what can be obtained through subterfuge rather
2 than on what can reliably induce anesthesia carries a substantial risk of causing
3 cruel pain and suffering.
4 Floyd’s execution is also unconstitutional because NDOC is not prepared to
5 conduct his execution in a manner that complies with constitutional requirements.
6 On May 6, 2021, NDOC Director Charles Daniels testified in federal court regarding
7 the department’s lack of preparedness to conduct an execution in the time frame
8 currently sought by the State. Daniels testified he was “still in the process of
9 looking at the various drugs to be used” in NDOC’s execution protocol. Ex. 4 at 40,
10 id. at 55 (Transcript of Evidentiary Hearing held on May 6, 2021). He repeatedly
11 stated the need to consult with the Chief Medical Officer (Ishan Azzam) and other
12 individuals regarding the execution protocol. Id. at 40, 43-44, 48, 76.5 He also
13 needed to ensure the drugs chosen were available to NDOC. Id. at 42. Daniels
14 testified NDOC’s pharmacist would order the drugs and do research for him about
15 them. Id. at 47-48.
16 Daniels acknowledged the need to “run through our protocols step-by-step
17 ensuring that we stay within the confines of what we’ve actually drafted.” Id. at 41.
18 He referenced the need to “identify any particular issues” that arose during test
19 runs. Id. Daniels did not know when the execution protocol would be finalized, but
20 he testified approximately 90 to 120 days were needed. Id. at 43-44.
21 5 Daniels later testified he had already met with Dr. Azzam, id. at 52, but 22 said he could not recall the date of the meeting. Id. at 53. Daniels stated that he expected to meet again with Azzam when new drugs became available. Id. at 55-56. 23 That meeting has not currently been scheduled. Id.
48
1 Director Daniels also acknowledged he would comply with a state court
2 warrant for Floyd’s execution, even if it is scheduled to occur in approximately four
3 weeks. Ex. 4 at 45-46, 49-51, 70, 72. Daniels testified his preference would be to “go
4 with the longer date” if given a choice. Id. at 74.
5 The State’s insistence in seeking an order for Floyd’s execution before NDOC
6 is prepared to conduct one carries a substantial risk of causing cruel pain and
7 suffering. Daniels’ testimony, taken at face value, shows NDOC is at the beginning
8 of its deliberative process because he still has not selected the drugs to be used in
9 the execution. If that is true, then important issues such as dosage amounts, drug
10 interactions, arrangements for purchase, preparation of the drugs, test runs on the
11 protocol, and identification of issues that need correction during test runs has not
12 yet occurred. Given the Director’s personal preference for more time and NDOC’s
13 agreement in federal court to a scheduling order setting forth a timeline of
14 approximately 90 days (from disclosure of the execution protocol through the
15 dispositive motions deadline), Floyd v. Daniels, Case No. 3:21-cv-00176-RB-CLB,
16 Rule 26(f) Conference Report at 3-4 (filed May 2, 2021), ECF No. 33 at 3-4, it follows
17 that the State cannot insist the execution warrant be effectuated before that time,
18 including the State’s new date of late July, 2021.
19 The State also cannot perform a constitutional execution at the Nevada State
20 Prison, which is the location where state law designates the execution must occur.
21 Floyd incorporates the allegations of Claim Three as if fully set forth herein. The
22 warrant submitted by the State designates that Floyd’s execution will be performed
23
49
1 at NSP, but the Director testified on May 6, 2021, that the execution would be
2 performed at the ESP, as does the State’s latest filing. Ex. 4 at 56; Addendum to
3 State’s Motion for the Court to Issue Second Supplemental Order of Execution and
4 Second Supplemental Warrant of Execution at 3 (filed May 10, 2021). However, the
5 State argues, “Defendant cites to no statute that requires NDOC to issue
6 assurances of the manner and method or place of execution before this Court can
7 issue the Order of Execution.” Reply to Opposition to Motion for the Court to Issue
8 Second Supplemental Order of Execution and Second Supplemental Warrant of
9 Execution at 4 (filed May 5, 2021). What is clear is that NDOC is not capable of
10 conducting an execution at the closed and abandoned prison at NSP. Floyd
11 incorporates his allegations in Section II(C)(2, 3) of his Opposition to the State’s
12 motion to issue an order and warrant of execution as if fully set forth herein.
13 NDOC’s inability to perform a constitutional execution during the time frame
14 contemplated by the State’s order and warrant of execution invalidates Floyd’s
15 death sentence. Under state law, executions must be performed using lethal
16 injection and the execution must occur at the Nevada State Prison. The inability to
17 conduct a constitutional execution using those means at the required location
18 means the execution cannot go forward. Moreover, the signing of unenforceable
19 execution orders and the setting of multiple execution dates constitutes a mock
20 execution which violates the constitution by causing needless psychological injury to
21 Floyd. These constitutional violations are prejudicial per se.
22
23
50
1 CLAIM FIVE: Errors in Penalty Verdict Form
2 Zane Floyd’s death sentence is invalid under state and federal constitutional
3 guarantees of due process, equal protection, a reliable sentence, and a fair and
4 impartial jury, because the verdict forms given to the jury for penalty deliberations
5 contained misleading language and an erroneous standard for consideration of the
6 life sentencing options. U.S. Const. amends V, VI, VIII, XIV; Nev. Const. Art. I, § 1,
7 5, 6, 8; Art. 4, § 21.
8 SUPPORTING FACTS
9 The general verdict forms and instructions used in Floyd’s case misled jurors
10 by incorrectly requiring mitigating circumstances to outweigh aggravating
11 circumstances in order to impose a life sentence. As explained below, life sentence
12 options were improperly removed from the jury’s consideration upon finding the
13 existence of the aggravating circumstances. By stating that the jury’s ability to
14 consider a life sentence was dependent upon the weighing of aggravating and
15 mitigating circumstances, the verdict forms and instructions also prevented the jury
16 from considering the life sentencing options. These errors were prejudicial as a jury
17 in Nevada is allowed to impose a life sentence under any circumstances, including
18 those where mitigation is equal to, or outweighed by, statutory aggravating
19 circumstances.
20 The court provided the jury with two forms for deliberation: a general verdict
21 form, to determine penalty, and a special verdict form, which included a list of
22
23
51
1 aggravating factors.6 The jury used both forms. The general verdict form included
2 the following section:
3 [H]aving found that the aggravating circumstance or circumstances outweigh
4 any mitigating circumstance or circumstances impose a sentence of,
5 ______A definite term of 100 years imprisonment, with eligibility for parole beginning when a 6 minimum of 40 years has served,
7 ______Life in Nevada State Prison with the possibility of parole, with eligibility for parole 8 beginning when a minimum of 40 years has been served. 9 ______Life in Nevada State Prison without the 10 possibility of parole.
11 ______Death.
12 Ex. 5.
13 A substantial problem exists with the general verdict form, thus rendering
14 Floyd’s death sentence invalid. The verdict form lists all life sentencing options with
15 language stating that each of the sentences can only be imposed if “the aggravating
16 circumstances outweigh any mitigating circumstance.” Id. This is error, as only
17 death sentences require a finding “that there are no mitigating circumstances
18 sufficient to outweigh the aggravating circumstances.” NRS 175.554(3). When a
19 verdict form lists life sentencing options and requires jurors apply a death
20 sentencing standard in choosing one of those options, it is not only error, but plain
21 error which warrants reversal. Ex. 7 (Petrocelli v. State, No. 79069, 2021 WL
22
23 6 Exs. 5, 6.
52
1 2073794 (May 21, 2021)) (Order of Reversal and Remand) (reversing death sentence
2 after concluding that penalty verdict forms contained erroneous language requiring
3 the jury to weigh aggravating and mitigating circumstances for life sentencing
4 options).
5 Using this error-filled verdict form—which did not allow the jury to render a
6 verdict for a life sentence without first finding mitigation outweighed aggravating
7 circumstances, conflated death eligibility with death worthiness, and was written in
8 a way that was prejudicial per se to Floyd, and the State cannot demonstrate
9 beyond a reasonable doubt that the error is harmless. Floyd therefore is entitled to
10 a new penalty hearing.
11 / / /
12 / / /
13 / / /
14
15
16
17
18
19
20
21
22
23
53
1 RELIEF REQUESTED
2 For the foregoing reasons, Zane Floyd respectfully requests that this Court:
3 1. Grant his petition as to Claim One and permanently set aside his
4 death sentence and set the case for a non-capital sentencing hearing. In the
5 alternative, Mr. Floyd requests an evidentiary hearing to demonstrate his reduced
6 culpability warrants a categorical exclusion from the death penalty, followed by the
7 permanent setting aside of his death sentence and the scheduling of a non-capital
8 sentencing hearing:
9 2. Grant his petition as to Claim Two and decline to sign an execution
10 warrant proffered by the State until Mr. Floyd has had an opportunity to seek
11 clemency before the Pardons Board. In the alternative, grant a stay of Mr. Floyd’s
12 execution warrant until he has had an opportunity to seek clemency before the
13 Pardons Board. In the alternative, set aside Mr. Floyd’s death sentence.
14 3. Grant his petition as to Claim Three and decline to sign an execution
15 warrant proffered by the State for Mr. Floyd’s execution at Ely State Prison. In the
16 alternative, grant Mr. Floyd’s motion to strike the motion for execution warrant
17 sought for Mr. Floyd’s execution at ESP.
18 4. Grant his petition as to Claim Four and decline to sign an execution
19 warrant proffered by the State until Mr. Floyd’s execution can be constitutionally
20 carried out.
21 5. Grant his petition as to Claim Five and set aside his death sentence
22 and set the case for a new penalty hearing.
23
54
1 DATED this 3rd day of June, 2021.
2 Respectfully submitted RENE L. VALLADARES 3 Federal Public Defender
4 /s/ David Anthony DAVID ANTHONY 5 Assistant Federal Public Defender
6 /s/ Brad D. Levenson 7 BRAD D. LEVENSON Assistant Federal Public Defender 8
9 /s/ Jocelyn S. Murphy JOCELYN S. MURPHY 10 Assistant Federal Public Defender
11
12
13
14
15
16
17
18
19
20
21
22
23
55
1 VERIFICATION
2 Under penalty of perjury, the undersigned declares that he is counsel for the
3 petitioner named in the foregoing petition and knows the contents thereof; that the
4 pleading is true of his own knowledge except as to those matters stated on
5 information and belief and as to such matters he believes them to be true.
6 Petitioner personally authorized undersigned counsel to commence this action.
7 DATED this 3rd day of June, 2021.
8 /s/ Brad D. Levenson BRAD D. LEVENSON 9 Assistant Federal Public Defender
10
11
12
13
14
15
16
17
18
19
20
21
22
23
56
1 CERTIFICATE OF SERVICE
2 In accordance with EDCR 8.04(c), the undersigned hereby certifies that on
3 this 3rd day of June 2021, a true and correct copy of the foregoing SECOND
4 AMENDED PETITION FOR WRIT OF HABEAS CORPUS (POST-CONVICTION),
5 was filed electronically with the Eighth Judicial District Court. Service of the
6 foregoing document shall be made via electronic service to:
7 Alexander Chen Chief Deputy District Attorney [email protected] 8 [email protected]
9
10 /s/ Sara Jelinek An Employee of the Federal Public Defenders 11 Office, District of Nevada
12
13
14
15
16
17
18
19
20
21
22
23
57